How Scalia Changed the Supreme Court

Supreme Court Justice Antonin Scalia, pictured here in 1993, did not always win allies to his opinions, but he succeeded at pushing the Court toward constitutional originalism, and particularly toward textualism.

Photograph courtesy CNP / Getty

The loss of Justice Antonin Scalia is immensely significant on two levels. First, Scalia himself ranks among the most influential Justices in American history, alongside such figures as John Marshall, Oliver Wendell Holmes, Jr., and William Brennan. Second, Scalia was the linchpin of the Supreme Court’s five-justice conservative majority. His departure gives President Obama—or a Democratic successor—the opportunity to reshape the ideological balance among the Justices.

When Scalia joined the court, in 1986, the leading school of constitutional interpretation was the “living Constitution”—the claim that the meaning of the document evolves with changes in American society. Scalia brought with him the concept of “originalism”—that the Constitution should be interpreted as its eighteenth-century framers understood it. In practical terms, originalism gives constitutional sanction to conservative politics. It amounts to no protection for abortion rights, no recognition of gay rights, and no sanction for affirmative action or protective legislation to benefit racial minorities and women. Over three decades, Scalia won more than he lost, and originalism remains ascendant among political conservatives.

In his most significant decision for the court’s majority, District of Columbia v. Heller, in 2008, Scalia transformed the understanding of the Second Amendment. Reversing a century of interpretation of the right to bear arms, he announced that individuals have a constitutional right to possess handguns for personal protection. The Heller decision was so influential that even President Obama, whose politics differ deeply from Scalia’s, has embraced the view that the Second Amendment gives individuals a constitutional right to bear arms.

It is worth noting that on the constitutional issues Scalia cared most about—overturning Roe v. Wade and ending affirmative action—he never found a majority. But his greatest achievement may have been in a less visible realm. In interpreting laws, he was the leading spokesperson for “textualism,” the idea that, when interpreting laws, courts should look not to legislative history, or congressional “intent,” but rather only to the words of the law itself. While originalism remains controversial within the legal community, textualism won support from nearly all his colleagues (all except Stephen Breyer). This means that the Justices will limit the reach of laws to their precise terms, expanding the court’s power over Congress.

Scalia was a voice for conservative political views throughout his entire tenure. He voted for gutting the Voting Rights Act, and for deregulating political campaigns in Citizens United and subsequent cases. And of course he was in the majority in Bush v. Gore, which ended the recount of the Florida vote in the 2000 Presidential election. His opinions, always combative, took on an ugly edge in recent years, especially on the subjects of immigration and gay rights. It is possible that his belligerence, especially early in his tenure, cost him an alliance with Sandra Day O’Connor, who, as a swing vote, controlled so many outcomes. His friendship with Ruth Bader Ginsburg is well known, but it never won him her vote in big cases.

The arithmetic of the Supreme Court for the rest of this term is straightforward. There are four liberals—Ginsburg, Breyer, Sonia Sotomayor, and Elena Kagan—and three remaining hardcore conservatives—Chief Justice John Roberts, Clarence Thomas, and Samuel Alito—who are usually joined by Anthony Kennedy. If Barack Obama has a chance to fill Scalia’s seat, it will transform the court in a progressive direction. Not surprisingly, then, leading Republicans, like Senate Majority Leader Mitch McConnell and Senate Judiciary Chairman Chuck Grassley, have vowed to prevent a vote on any nominee that the President puts forward.

It’s unclear that the President or his party can do anything to force a vote on a nominee. That’s part of why it matters so much which party controls the Senate. But ultimately Obama—or the next President—will have no more consequential role than choosing Scalia’s replacement.